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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-02-04 Daily Xml
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ADMINISTRATION AND PROBATE (DISTRIBUTION ON INTESTACY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 November 2008. Page 1227.)

Mrs REDMOND (Heysen) (16:50): Again, I indicate that I am the lead speaker—indeed, I may be the only speaker—for the opposition in relation to this bill, which is relatively straightforward and which, I indicate, the opposition will be happy to support. It is not an issue which arises a great deal. The issue that is being corrected by this bill is that, at the moment, the Administration and Probate Act (which governs various things as the name might suggest) has some rules about intestacy. In essence, the act says that if you die without having made a will or without a valid will—

The Hon. M.J. Atkinson: If one dies.

Mrs REDMOND: —if one dies—and you have a spouse or domestic partner your spouse or domestic partner inherits it all. However, if you have a spouse or domestic partner and issue, some more complicated rules apply. The rules essentially are that, first, you will pay the first $10,000 to the spouse, and then, of the balance, half will go to the spouse and the remaining half will be divided equally between or among the issue.

The Hon. M.J. Atkinson: Well, which is it, between or among?

Mrs REDMOND: It could be either.

The Hon. M.J. Atkinson: Depending on?

Mrs REDMOND: The number of them.

The Hon. M.J. Atkinson: Very good.

Mrs REDMOND: I am sure that the Speaker enjoys the fact that the two pedants of the parliament are opposite each other in these bills; and no doubt the Attorney's children, like mine, correct him at home on every tiny slip up. That is the rule: if there is a spouse and children, at the moment the spouse gets the first $10,000, the spouse gets half of what is left and the kids get the rest of it, divided between them if there is only two and among them if there are more than two.

This bill, in essence, says, 'Well, instead of $10,000,' which has been in place for a fair old while (for as long as I can remember), 'let's give the spouse the first $100,000.' Basically, it then makes provision (which I would rather see within the legislation but, as I understand the intention it puts in a provision) to enable regulations from time to time to update that figure. As I said, it does not arise very often because mostly, in modern times, both men and women hold property jointly if they are in a long-term relationship. For the vast majority of people who came to me to get wills done there was never any need to seek probate in any event when one spouse died because virtually everything was held jointly.

With respect to property held jointly, when one person died the remaining person owned the whole thing and you did not need to get probate of the will in any event. However, there are still some people (particularly the older generation, and there are still plenty of them around) who have property which is just in one person's name. Sometimes it has come about because they have owned the property before they married.

This particular provision can be quite difficult and quite problematic because if, for instance, you have someone who is a new domestic partner or spouse (a second marriage, for instance), and if there are children of a first marriage and the person who is the parent of the children dies, that partner can find that suddenly, because they get only the first $10,000 and half of the balance, they no longer have a home to live in because they will not get sufficient control of that asset.

I always used to recommend to people that they think about taking out an insurance policy on a second spouse. Because they have an insurable interest in a spouse, they can take out an insurance policy. If one then died, the other one had some funds to go on with. Otherwise things get very messy when there are second family situations. In essence, this is a simple updating and nothing more—the Attorney-General no doubt will correct me if I am wrong—of the figure, which was once set at $10,000, to $100,000. I have a question mark about whether that is a sufficient figure, given the average house price in Adelaide is now over $300,000, Even under these provisions, were that sort of circumstance to arise, assuming there was no other property, one could still have considerable difficulty—but that might be a discussion for another day.

It is sensible to at least bring the figures up to date. I would prefer to insert a CPI provision so that $100,000 could continue to grow as the years went by, but I appreciate that would necessitate the publication of an annual updating, as was done with the nought to 60 scale when motor accidents were put on the nought to 60 scale for pain and suffering. I understand where the government is coming from. I am not persuaded that regulation of the prescribed sum is the best way of keeping up to date, but it is at least a significant improvement on where we are at present. With those few words I indicate the opposition's support for the bill.

Mr VENNING (Schubert) (16:57): This is something with which I have had a fair bit to do as a result of owning properties.

Mrs Redmond: And staying married.

Mr VENNING: By staying married I have not had problems. Our family is lucky that it has not had to go through difficulties because of untimely deaths. In the old days, we had death duties, which were the most iniquitous thing; so many farms were destroyed because of death duties. Often it was a double banger. Often the partner of the deceased died within 12 months and they were assessed again. A lot of good properties were lost as a result of that. There but for the grace of God, our farm was never affected. It is more luck than anything else because you do not get a choice about when you go. It is always a difficult time.

Over the years I have spent a lot of time trying to ensure that my immediate family—and now the extended family—do the responsible thing and have a will. Even if you think you do not have much, I have always said that it does not cost much to have a will. You can buy the kit for a couple of dollars and do your own will, but at least have something there to avoid this situation.

I agree with the sentiments of the bill and the comments made by the shadow minister. As always, she has been very thorough, and I do not know where we would be without her.

The Hon. M.J. Atkinson interjecting:

Mr VENNING: That is the second cutting remark today. The first one was levelled at me in relation to scrutineering at a polling booth. I assume it was a derogatory remark about my being a scrutineer. Well, I was actually asked to do it because I have knowledge in that area. I did my best to do what I could, even looking at the Labor votes, as well. But that is history and it does not matter.

Mrs Redmond interjecting:

Mr VENNING: That's right. The Labor scrutineer was not worried about their votes: I was. We all agree with the sentiment of this bill. It is an open and shut case. The amount of $10,000 is ridiculously low and one wonders why this issue was not addressed earlier. Other states have legislated for $200,000. I think $100,000 is a starting point and it is reasonable to set that figure. I think we agree that it should be at least CPI-adjusted every year so that it keeps up with costs. I do not think this has been dealt with since 1975, and that was a long time ago.

It is always a difficult time when a bereavement occurs and when there is no will, particularly if there are two different parents for that family; that is, if the deceased had a previous partner or partners and had children with them. It is a very complex matter and it can get very difficult, so in this instance it is good to have it clearly laid out. Certainly, I believe that in the first instance the spouse or partner has to be the number one consideration, because they are the one who has to continue on and they are also the one who looks after the children.

As I said earlier, apart from legislation such as this, I think we, as a government and an opposition, should also put out an education program and encourage people to make a will. People do not realise the problems it can cause if they do not have one, or the arguments that can take place and the feelings that can arise within a family if a genuine legal will is not made. I think we ought to promote the fact to everyone that all persons over the age of 18 years should have a will and that they should look at it every four or five years and reassess it—particularly when they have children. People should make sure that it says 'all of my children' (if you name them some will miss out)—obvious things like that.

So, first, I think we should encourage people to have a will, and then this legislation would not be needed. Secondly, I assume that when these matters are dealt with they are dealt with by the Public Trustee. No, the Attorney is shaking his head; not this one. Well, in my experience with the Public Trustee—even if it does not happen here, and no-one is shaking heads over there—in dealing with constituents (never my family, as I said earlier, and thank goodness for that) I have found that there are often some difficulties. Over the years I have heard many times that people were not aware of the costs of the Public Trustee, especially in the division of an estate, nor of the time it can take—and it can take an inordinate amount of time to wind up an estate. It is always a very difficult time, and people do not understand the legal problems.

I think this is a straightforward bill. Once again, I congratulate the shadow minister on representing us not only here, but also for putting it quite clearly to us in our party room. We support the bill.

The Hon. M.J. Atkinson interjecting:

Mr VENNING: Absolutely; there is no doubt. Very much respected.

The Hon. M.J. Atkinson: She won't stand for bad language.

Mr VENNING: No; nor should any person in this house. I believe anyone who objects to bad language should say so. I am not someone who has a reputation for swearing, although I do swear, especially on my own. On the farm if something goes wrong and I get particularly cross I will let go with the word, but in the presence of other people—particularly the member for Heysen—I just do not. I know it is not appreciated and so it just does not happen. I think if anyone objects—not just ladies but also men—that should be respected. I have no problem with that with the member for Heysen. I join my colleague in supporting the bill.

Bill read a second time.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (17:04): I move:

That this bill be now read a third time.

Mrs REDMOND (Heysen) (17:04): It occurred to me while I was listening to the member for Schubert's contribution that I want to endorse his comments about the need for a will. I cannot now remember the exact circumstances or how it came about, but I came across a case where a young man, who was newly married, died in an accident. Because of the circumstances of the various times of death—and I cannot detail it—it ended up with the peculiar situation where a young man, who would not normally be expected to have a lot of assets, had insurance that paid out, and that insurance did not end up with his parents but with the second wife of the now deceased father of his new bride—all because he did not have a will that would have left it to his own parents which, undoubtedly, would have been his wish in the circumstances. So, some very peculiar things can arise.

The Hon. M.J. Atkinson: What if the bride died, too?

Mrs REDMOND: I cannot remember because, if she died too, it should not have happened that way unless there was a 30-day gap after the death. I cannot recall the details of how it ended up with this very peculiar outcome of a total stranger to this young man becoming the beneficiary, rather than his own parents. It was a very sad case for that to occur, so I endorse the comments of the member for Schubert that estate planning is something that everyone should get involved in, even if they think they do not have many assets. Some people will be killed in circumstances where there will be insurance, WorkCover or some other policy or superannuation payout, and they need to give consideration to how to deal with that so that they do not then get caught having to deal with the provisions of the Administration and Probate Act's intestacy provisions.

Bill read a third time and passed.

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